Gohr v. Beranek

• Decision Date: 04 May 1954
• Citation: 266 Wis. 605,64 N.W.2d 246
• Parties: GOHR, v. BERANEK et al.
• Court: Wisconsin Supreme Court

Page 246

64 N.W.2d 246

266 Wis. 605

GOHR, v. BERANEK et al.

Supreme Court of Wisconsin.

May 4, 1954.

Action by plaintiff Ernst Gohr against defendants Albert Beranek and Ella G. Beranek, his wife, for foreclosure of a second mortgage, and against defendant Carl Gohr for judgment requiring him 'to set forth his adverse interest in and to said premises' and for an accounting. Judgment was entered granting foreclosure of the Beranek mortgage and dismissing the complaint as against Carl Gohr. Plaintiff appeals.

Plaintiff and Carl Gohr are brothers; Ella G. Beranek is their sister and Albert Beranek, her husband, is their brother-in-law.

Carl Gohr inherited from his mother by will a real estate mortgage against the farm owned by his brother Ernst, the will also forgiving to Ernst everything due and owing on the mortgage over and above $4,000. The brothers entered into an oral agreement that Ernst would convey the farm to Carl in satisfaction of the mortgage. Pursuant thereto Carl has been in possession of the premises since 1941, has paid the taxes, farmed the land and leased the house. Ernst refused to deliver a deed to Carl and in July 1950 gave a deed to Mr. Beranek.

Shortly thereafter Albert Beranek and Ernst Gohr jointly commenced an action in the county court of Barron county against Carl Gohr to quiet title to the premises and for an accounting of the rents and profits. By counterclaim Carl alleged ownership of the real estate by virtue of the oral contract, and the county court entered judgment dismissing the complaint and quieting title in Carl.

Upon appeal this court held there was not sufficient performance of the oral contract to take it out of the statute of frauds, denied specific performance, holding that Carl has an adequate remedy by foreclosing his mortgage, and reversed the judgment, remanding the cause 'for further proceedings in accordance with this opinion.' Beranek v. Gohr, 1951, 260 Wis. 282, 50 N.W.2d 459, 462.

Thereafter counsel for the plaintiffs in that action moved the county court:

'That the Court determine the amount of principal and interest owing to the defendant on the mortgage indebtedness described in the complaint. That the Court allow the defendant credit for the taxes paid by the defendant, and an allowance of interest thereon. That the Court determine a fair rental value of the farm premises involved in this action, and allow the plaintiffs credit for same, with interest thereon to be applied as a general credit against the mortgage indebtedness involved in this action. That the Court take testimony for the purpose of striking a balance of account between the parties, and determine the amount of money to be paid, if any, to the defendant. That the Court determine and establish the equities of the parties.'

These motions were denied, the county court holding that the mandate of this court referring to 'further proceedings in accordance with this opinion' meant only that Carl Gohr might foreclose his mortgage. No appeal was taken from the denial of the motions.

In October 1952 the present action was commenced by Ernst in the circuit court for Barron county for foreclosure of the Beranek mortgage and for an accounting from Carl under the first mortgage, as an alleged mortgagee in possession. In dismissing the action as to Carl Gohr, the circuit court said:

'It appears to us that what Ernst Gohr is trying to do in this case, so far as Carl Gohr is concerned, is to try the same case which he tried in County Court. * * * Therefore, it seems to us that the place where Ernst Gohr should get his relief is in County Court, and if he contends that proceedings were not conducted by the County Court in accordance with the opinion of the Supreme Court, then his relief is either by further application to the County Court to conduct such proceedings, or by appeal, or otherwise. So far as this Court can see from the record the matter properly belongs and is still pending in County Court.'

S. P. Rigler, Rice Lake, for appellant.

Francis R. Parks, Rice Lake, Terence N. Hickey, Hayward, of counsel, for respondent Carl Gohr.

MARTIN, Justice.

Appellant raises several questions on this appeal. If we find, however, that the trial court correctly held the issue to be res judicata, the other questions will be immaterial.

It is argued that this action is not the same as Beranek v. Gohr, supra, because the prior action was to quiet title whereas this involves the foreclosure of a mortgage. We have consulted the cases and briefs in Beranek v. Gohr and find that the complaint there alleged the ownership in Carl Gohr, the defendant, of the $4,000 mortgage and his occupancy of the premises. The relief sought was a judgment...